PRATIMA CHOWDHURY v. KALPANA MUKHERJEE & ANR.

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Court: Supreme Court of India
Decided: 2014 (year only)
Bench: P. SATHASIVAM and JAGDISH SINGH KHEHAR
Citation: [2014] 2 S.C.R. 656

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Judgment · Supreme Court of India · decided 2014 (year only) · Bench: P. SATHASIVAM and JAGDISH SINGH KHEHAR

[2014] 2 S.C.R. 656

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Headnote — Supreme Court Reports (editorial summary, not part of the judgment)

Catchwords

TRANSFER OF PROPERTY ACT, 1882: c Housing Society - Transfer of membership/flat - Validity of - Flat given on rent to the son of the respondent - Letters written by appellant to Society for transferring the said flat in favour of respondent on account of close relationship between them - Transfer was without consideration - Arbitrator held the 0 letters of transfer invalid - Cooperative Tribunal and High Court held that approach of arbitrator was erroneous -

Held

Respondent was mother-in-law of niece of appellant - Therefore factually the expression of close relationship depicted in the letters was false - As regards transfer without consideration, respondent herself gave statement to the effect that appellant had transferred the flat for consideration of Rs.4.29 lacs which was in form of shares belonging to the son of the respondent - However, on the date of execution of transfer or even when board resolution was passed, the son of the respondent did not have any shares in his name said to have been transferred to appellant as consideration of the flat - Therefore, all the ingredients of the letters were shrouded in suspicious circumstances - The stance of appellant regarding transfer of shares was that same was return of loan extended by her to son of the respondent for business venture - This factual position was overlooked by Cooperative Tribunal and High Court - Arbitrator held that the appellant was in Bombay and not in Calcutta when these letters were written - Said finding was recorded on the basis of 3 witnesses H 656

Catchwords

Transfer of membership/flat - Validity of - Fiduciary relation -

Held

When parties are in fiduciary relationship, the manner of examining the validity of a transaction specifically when there is no reciprocal consideration has to be based on parameters which are different from those applicable to an ordinary case.

Catchwords

Transfer of membership/flat without consideration - Relationship of faith, trust and confidence - Letters written by appellant to Housing Society for transferring her flat to the name of the respondent -

Held

There was no justification for the appellant to transfer her flat to respondent free of cost specially when she has no direct intimate relationship with respondent - Son of respondent was married to niece of appellant and so he was in domineering position - He enjoyed trust and confidence of appellant which was apparent from the fact that thejoint account of appellant with the son of the respondent was operated by him exclusively and drafting of the letters of transfer of flat was done by him on behalf of appellant - In such fact situation, the onus of substantiating

Catchwords

CODE OF CIVIL PROCEDURE, 1908: Pleadings - 8 Rejoinder - Non consideration of facts stated in the rejoinder - Effect of - Respondent-defendant in written replies adopted stand contrary to documents relied upon by rival parties - Number of documents not mentioned by appellant-plaintiff in the dispute case relied upon by respondent -

Held

Arbitrator recorded his findings in the award not only on the pleadings including rejoinder but also on the basis of evidence led in support of said pie ·dings - Thus, arbtirator acted in accordance with law and therefore exclusion from consideration of factual position asserted by appellant in her rejoinder by the Cooperative Trwunal and High Court was wholly unjustified.

Catchwords

Evidence Act, 1872: s. f 15 - Estoppel - Salient pre- condition for invoking rule of estoppel - Discussed - In the instant case, the first party made no representation, the second party did not accept any representation and did not act in any manner nor second party altered its position - Therefore, tire question whether the restoration of the original position would be iniquitous or unfair did not arise. G NOTARY ACT, s.8 - Notarization of document - Non issuance of notarial certificate -

Held

In the absence of i~suance of certificate, notarization of document becomes suspicious.

Held

1. The Co-operative Tribunal, as also, the High Court excluded from consideration, the factual position expressed in the rejoinder filed by the appellant (before the Arbitrator). In excluding the said factual position, the Co-operative Tribunal and the High Court did not rely on any provision of law nor was any reliance placed on any principle accepted and recognized in legal jurisprudence. It is not a matter of dispute that after the respondent and the Society were permitted to file written replies before the Arbitrator, the rejoinder filed thereto on behalf of appellant, was permitted to be taken on record. It is not in contention, that in the written replies filed before the Arbitrator, the respondent had adopted inter alia the stance that consideration was paid to appellant in lieu of the transfer of flat to her name, even though the documents relied upon by the rival parties, expressed otherwise. A number of documents not mentioned in the Dispute Case filed by appellant were also relied upon by the respondent. Pleadings between the parties could be considered as complete, only after appellant was permitted to file a rejoinder (in case she desired to do so). She actually filed a rejoinder which was taken on record by the Arbitrator. Both parties were permitted to lead evidence, not only on the factual position emerging from

Reporter's headnote (continued) and case details

p. 656

A (Civil Appeal No. 1938 of 2014) FEBRUARY 10, 2014 B

PRATI MA CHOWDHURY v. KALPANA MUKHERJEE & 657 ANR. produced on behalf of appellant before the arbitrator - A Cooperative Tribunal overlooked the statement of witnesses merely because notary was an Advocate - Conclusion of Cooperative Tribunal and High Court that the documents were executed in Calcutta was therefore basec pn no evidence - Further, respondent continued to pay rent into the account of B appellant - Accordingly, arbitrator rightly inferred that even to the knowledge of respondent, flat was not actually transferred to her name.

Housing Society - Transfer of membership/flat - C Revocation of - Withdrawal letter revoking letters of transfer was sent by appellant before the transfer of membership/flat had attained finality - Still, Society did not consider the withdrawal letter - Acceptance or rejection on merits is another matter, but non-consideration clearly invalidated the resolution of transfer passed by society. D

p. 658

A the validity and genuineness of the transfer of flat by the appellant rested squarely on the shoulders of the respondent which she miserably failed to discharge.

DOCTRINES/PRINCIPLES:

Principle of estoppel - Applicability of - Discussed. E Principle of justice and equity and doctrine of fairness - Applicability of.

H ,The appellant owned a flat in a Cooperative Society.

p. 659

&ANR. One PM, the son of the responent and the son-in-law of A the appellant's sister occupied flat 50 owned by the appellant. PM was employed with CP Ltd. On 9.3.1992, CP Ltd. confirmed having taken flat .in question on lease and licence for 3 years for the residence of PM. The rent was paid in the joint acount of the appellant and PM. B

On 29.6.1992, the appellant requested the Society to transfer the said flat to the respondent and intimated that all municipal taxes would be paid by the respondent. The appellant then addressed letter dated 11.11.1992 to the C Secretary of the Society reiterating her request made in letter dated 29.6.1992 wherein she again expressed dearly'that the transfer being sought by her, was without any monetary consideration. It was pointed out in the said letter that the formal request for the transfer was made in order to comply with the rules regulating such D transfer, and also, to avoid future complications. Consequently, the appellant executed an agreement dated 13.11.1992, transferring her right, title and interest in the said flat to the respondent. The Secretary of the Society wrote letter dated 10.3.1993 to the Deputy E Registrar, Co-operative Societies for seeking the approval for the transfer of flat to the name of the respondent. Meanwhile PM was transferred to Bombay and on 19.10.1993, CP Ltd. terminated the agreement executed by it with the appellant. On 21.10.1993, the respondent on F her own account deposited rent in the bank account of the appellant. On 16.12.1994, 500 shares standing in the joint names of PM and his wife SM were transferred to the name of the appellant. G The appellant wrote a letter dated 28.2.1995 to the Secretary of the Society, that she had not received any reply to her letter dated 11.11.1992. She also informed the Secretary of the Society that she had decided to return to Calcutta permanently and, therefore, her request for H

p. 660

A transfer of her membership to the name of the respondent be treated as withdrawn. The appellant's case was that the Society never responded to her letter dated 28.2.1995 and the said letter was never forwarded by the Society to the Department of Co-operative Societies. B Still, the Society approached the Deputy Registrar, Co-operative Societies, seeking approval for the admission of the respondent as a member of the Society which was conditionally approved on 13.3.1995. On 13.3.1995 itself the shares of the appellant were transferred to the name of the respondent. On 22.3.1995, the appellant addressed a letter to the Deputy Registrar, Co-operative Societies requesting to direct the Society to withdraw the offer of transfer of her membership to the respondent. It was also requested, that the application made by the respondent for transfer of share certificates in her name, be not approved. The appellant wrote another letter dated 28.3.1995 to the Secretary of the Society requesting that transfer of membership in favour. of the respondent be treated as withdrawn. The Society E convened a meeting on 2.4.1995 wherein the Board of Directors resolved, that it had no legal competence to restore the membership of the Society, as also, the retransfer of the ownership of the flat no. SD, to the appellant. Having so resolved, the Secretary of the F Society forwarded a copy of the resolution dated 2.4.1995, to the appellant. The Board of Directors of the Society approved the transfer of flat to the name of the respondent. In addition to the said flat, the ownership of the appellant also comprised of a covered garage space, on the ground floor. The same were not mentioned in the clearances dated 14.2.1993 {by the Board of Directors of the ·Society) and 13.3.1995 (by the Deputy Registrar, Co- o pe ra tive Societies). Consequently based on the agreement dated 25.4.1995 between the respondent and the Society, the said garage space was also subsequently

PRATIMA CHOWDHURY v. KALPANA MUKHERJEE &661 ANR. transferred to the name of the respondent. A

On 16.4.1995, the appellant challenged the validity of the Board. of Directors' Resolution dated 2.4.1995. The Deputy Registrar, Co-operative Societies referring to the appellant's letter dated 28.2.1995 (wherein appellant had 8 withdrawn her request for transfer of membership in favour of respondent), wrote a letter dated 31.5.1995 to the Secretary of the Society highlighting the fact that, the Society had not brought the letter dated 28.2.1995 to the notice of Deputy Registrar, Co-operative Societies, at the time of seeking approval of the Co-operative Department The Secretary of the Society was accordingly directed, to take a decision on the matter, and to forward the same to the Deputy Registrar, Co-operative Societies.

Since, the appellant was not communicated any determination, by the concerned authorities, she addressed a notice on 9.9.1995, calling upon the Secretary of the Society, to deliver the possession of the flat along with the share certificates. The Society denied all the allegations made by the appellant against the E Society (contained in the notice). On the claim of retransfer of the shares and flat made by the appellant, the Society responded by asserting, that the shares had been transferred to the name of the respondent, and on the basis thereof flat no. 5D also had been transferred in her name, thereupon, the Society did not have any legal authority to restore/retransfer the same to the name of the petitioner. On 19.12.1995, the Deputy Registrar, Co- operative Societies also informed the appellant, that the transfer of her shares and flat in favour of the respondent had been completed, and since the Society had resolved on 2.4.1995 that it had no legal competence to cancel the same, nothing could be done in the matter.

The appellant filed Dispute Case which was adjudicated upon by the Arbitrator. The Arbitrator held H

p. 662

A that agreement dt. 13.11.92 was invalid, void and incomplete and directed the Society to ensure and conform that the appellant gets the possession of the flat with garage space with immediate effect and issue share certificate in her name immediately. On· appeal, the Co- B operative Tribunal held that the entire approach of the Arbitrator was erroneous, as the Arbitrator had treated the appellant as a pardanashin 1.ady. The High Court dismissed the appeal. The instant appeal was filed challenging the order of the High Court. c Allowing the appeal, the Court

p. 663

&ANR. the complaint filed by appellant and the written replies A filed in response thereto (by respondent and the Society), but also, the factual position highlighted by appellant in her rejoinder affidavit. It is, therefore, not on the basis of the pleadings of the parties, but also on the basis of the evidence led in support of the said pleadings, that the B Arbitrator had recorded his findings in his award. The Arbitrator had, therefore, acted in accordance with law, and therefore the exclusion from consideration, of the factual position asserted by appellant in her rejoinder, by the Co-operative Tribunal and the High Court was wholly c unjustified. The factual narration by appellant could not be excluded from consideration, while adjudicating upon the rival claims between appellant and the respondent. [Para 26] [712-G-H; 713-A-F]

2. The Co-operative Tribunal in its order had invoked D the principle of estoppel, postulated in Section 115 of the Indian Evidence Act. The High Court affirmed the conclusions drawn by the Co-operative Tribunal. In addition to the said principle, the High Court invoked the principles of equity and fairness. The rule of estoppel is E a doctrine based on fairness. A perusal of the provision reveals four salient pre conditions before invoking the rule of estoppel. Firstly, one party should make a factual representation to the other party. Secondly, the other party should accept and rely upon the said factual representation. Thirdly, having relied on the said factual representation, the second party should alter his position. Fourthly, the instant altering of position, should be such, that it would be iniquitous to require him to revert back to the original position. Therefore, the doctrine of estoppel would apply only when, based on a representation by the first party, the second party alters his position, in such manner, that it would be unfair to restore the initial position. None of the ingredients of principle of estoppel contained in Section 115 of the H

p. 664

A Indian Evidence Act, can be stated to have been satisfied, in the facts and circumstances of this case. Herein, the first party has made no representation. The second party has therefore not accepted any representation made to her. Furthermore, the second B party has not acted in any manner, nor has the second party altered its position. Therefore, the question whether the restoration of the original position would be iniquitous or unfair does not arise at all. In the facts presented by the rival parties, especially in the background of the order c passed by the Arbitrator, that no consideration had passed in lieu of the transfer of the flat, and especially in the background of the factual finding recorded by the Co- operative Tribunal and the High Court, that passing of consideration in the present controversy was inconsequential, the principle of estoppel relied upon 0 could not have been invoked, to the detriment of the appellant. In view of this, the determination by the Co- operative Tribunal, as also the High Court, in having relied on the principle of estoppel, and thereby, excluding the pleas/defences raised by the appellant to support her E claim is set aside. [para 27] [714-A, H; 715-A-G; 717-E]

Footnotes

1 SCC 274; Monnet /spat & Energy Ltd. vs. Union of India & Ors., (2012)

11 SCC 1; H.S. Basavaraj (D) by his LRs. & Anr. Vs. Canara F Bank & Ors., (2010)

12 SCC 458 - relied on.

3.1. Admittedly, the reason for transferring the flat indicated in the letters dated 11.11.1992 and 13.11.1992 was on account of the close relationship between the G appellant and the respondent. As a matter of fact, there was no close relationship between appellant and the respondent. The appellant was indicated to have been living in Bombay and never visiting Calcutta. The respondent was a resident of Calcutta, who was in employment at Calcutta, and had started to reside with H

p. 665

& ANR. her son PM, after he moved to Calcutta alongwith his wife A SM. There was no direct relationship between the appellant and the respondent. Appellant's niece SM was married to PM, son of the respondent. The only relationship that can be assumed, is of aunt and niece, between the appellant and SM. If on account of love and B affection, for her niece, the appellant desired to transfer flat which she had purchased for a consideration of Rs.4 lakhs, she would have done so by transferring it to the name of her niece SM. Affinity to SM, and the love, affection and welfare of SM would not extend to a gesture c of the nature under reference, i.e., by way of transfer of immovable property, of substantial value, without consideration, to the mother-in-law of SM. Therefore, factually the expression of close relationship between the appellant and respondent depicted in letters dated 0 11.11.1992 and 13.11.1992 are on the face of it, false and incorrect. It is, therefore, improper for the adjudicating authorities to have accepted the factum of close relationship of the parties, in so far as, the transfer of flat no. 50 was concerned. Further, as per letters dated E 11.11.1992 and 13.11.1992, Flat no. 50 was sought to be transferred by the appellant to the respondent, without consideration. The said factual position cannot be accepted on account of the statement of the respondent herself. In the written reply filed before the Arbitrator, the respondent took the express stance, that the appellant had transferred flat no. 50 to her name, by accepting a consideration of Rs.4,29,000/-. She further asserted, that the said consideration had passed from the respondent to the appellant through PM who had transferred shares in his name valued at Rs.4,29,000/-, to the name of the appellant. Per se therefore, even respondent denied the factual position indicated in the letters. [para 28(i), (ii)] [717-H; 718-A-H; 719-A-B]

3.2. The letters dated 11.11.1992 and 13.11.1992 H

p. 666

A expressly recorded, that the factual position narrated in the letters was on account of "compliance with the rules regulating such transfer, and also, for avoiding future complications". In view of the factual position, it is apparent, that false facts were being recorded for B compliance with the rules and regulations, as also, for avoiding future complications. One would have appreciated the recording of consideration in lieu of the transfer of property from the name of appellant to that of the respondent, to avoid future complications, rather than c withholding the same. It is clearly not understandable, what kind of complications were being avoided. Expressing the factual position in the letters under reference, makes the whole transaction suspicious, mistrustful and possibly fraudulent too. In the absence of any relationship, the party benefiting from the letters 0 dated 11.11.1992 and 13.11.1992, would have successfully avoided all complications merely by incorporating consideration, which was to pass from the respondent to the transferee appellant. If consideration was to pass, and had actually passed, it is difficult to understand why the parties would say, that the transaction did not involve passing of consideration. It is, therefore, clear that all the ingredients of letter dated 11.11.1992 and 13.11.1992 were shrouded in suspicious circumstances. It was not legitimately open to the parties to record in the letters under reference, that flat no. 50 was being gifted by the appellant to the respondent, on account of lack of proximity between the parties. The transfer of the said property by one to the other, by way of gift, would obviously have been subject to judicial interference, as the same would at least prima facie, give the impression of dubiety. It was, therefore, that the respondent hastened to adopt a different factual position in her written reply before the Arbitrator. In the written statement filed by the respondent (before the Arbitrator) H the stand adopted by her was, that a consideration of

PRATIMA CHOWDHURY v. KALPANA MUKHERJEE & 667 ANR. Rs.4,29,000/- had passed from her to the appellant, by A way of transfer of shares (standing in the name of her son, PM) to the name of the appellant. The Board of Directors of the Society, in its meeting held on 14.2.1993, resolved to accept the resignation of the appellant and accept the membership of the respondent in her place. B On the date of execution of the documents under reference, as also on the date of passing of the resolution by the Board of Directors of the Society, PM did not have any shares in his name. The shares which PM acquired, and which respondent claimed to have been transferred c in lieu of consideration (to the name of the appellant), were shown to have been acquired on or after 8.9.1993. It is, therefore, apparent that PM did not even have the shares referred to by the transferee the respondent, in his name, when the transfer documents were executed on 0 11.11.1992 and 13.11.1992, or even on 14.2.1993 when the Board of Directors of the Society, passed the transfer resolution. These shares were shown to have been transferred to the name of the appellant on 16.12.1994. Well before 16.12.1994, even according to the stance adopted by the respondent, the appellant had executed all the transfer documents. It is therefore difficult to accept, that the parties had agreed to pass on consideration by transfer of shares, which were not even owned by the respondent (through PM) on the date of transfer of flat no. SD from the appellant to the respondent. Therefore, the stance adopted by the respondent in the written statement filed by her before the Arbitrator, is shown to be false. [Paras 28(iii), (iv)] [719-D- H; 720-A-E; 721-D-F] G 3.3. On the subject of transfer of shares from the name of PM to the name of the appellant, the appellant had adopted the stance, that the transfer of the above shares was on account of return of loans extended by the appellant to PM. The appellant had asserted, that after H

p. 668

A the transfer of PM from Calcutta to Bombay in the year 1993, he gave up his employment with CP Ltd. and started a business of aluminium products. To help PM with his business venture, the appellant had (on the asking of PM) paid a sum of Rs. 2 lakhs by way of cheque, for supply of raw materials to PM's business venture. PM had also taken a loan for a sum of Rs. 1,50,000/- for the same purpose from the sister of appellant). It was also ass~rted, that SM had similarly extended loans, by making payments through cheque to PM. The Arbitrator had accepted the said assertion of the appellant. The Arbitrator had placed reliance, on documentary and oral evidence, produced by the appellant. The instant factual aspect of the matter was totally overlooked by the Co- operative Tribunal, as well as, by the High Court. The fact that appellant had addressed a letter to the Secretary of the Society, dated 28.2.1995, for withdrawal of her earlier letter dated 11.11.1992 was not disputed. It is also not a matter of dispute that at the time when the appellant addressed the above letter, neither the transfer of membership, nor the transfer of the flat, had assumed finality. The transfer of membership, as also the transfer of the flat, would assume finality only upon the approval of the same by the Deputy Registrar, Co-operative Societies. The factual position emerging from the record of the case revealed that the Society sought the approval of the Deputy Registrar, Co-operative Societies for the transfer of membership, as also, flat no. 5D to the name of Respondent on 13.3.1995. Through the letter dated 10.4.1~95, the appellant was informed, that the Society had no authority to look into the matter, after the resolution of the Board of Directors dated 2.4.1995. This explanation is untenable. It was imperative for the Society to have examined the withdrawal letter dated 28.2.1995, the matter certainly had not been concluded. Well after the withdrawal letter, the Society by its notice dated H 16.4.1995 had intimated its members, about the resolution

PRATI MA CHOWDHURY v.KALPANA MUKHERJEE & 669 ANR. dated 2.4.1995. The matter was, therefore, pending authoritative conclusion. Thus viewed, it was not justified for the Society to deny consideration of the withdrawal letter dated 28.2.1995. Acceptance or rejection on merits is another matter, but non-consideration is not understandable. The instant non-consideration clearly invalidated the resolution passed by the Society. [para 28 v, vi] [721-H; 722-A-E; 723-A-F] ~

3.4. When the letter dated 22.3.1995 was addressed to the Deputy Registrar, Co-operative Societies, it had not yet granted approval to the recommendations made by the Society. The receipt of the letter dated 28.2.1995, by the Society (as also the receipt of the letter dated 22.3.1995, by the Deputy Registrar, Co-operative Societies) is not disputed. The decision taken by the Deputy Registrar, Co-operative Societies was, without reference to the withdrawal letter dated 28.2.1995. ·The determination by the Deputy Registrar, Cooperative Societies, cannot therefore be treated as a valid and legitimate consideration. The instant non-consideration clearly invalidated the approval granted by the Deputy E Registrar, Co-operative Societies. The veracity of the execution of the documents dated 11.11.1992 and 13.11.1992 by the appellant, was also examined by the Arbitrator. In the said examination, the Arbitrator arrived at the conclusion, that the appellant was in Bombay and not in Calcutta when these documents were executed. F The said finding was recorded on the basis of three witnesses produced on behalf of the appellant (before the Arbitrator). While rejecting the conclusion drawn by the Arbitrator, the Co-operative Tribunal overlooked the statements of the witnesses produced by the appellant, G merely because the notary was an Advocate. The Co- operative Tribunal reasoned, that the statement of an Advocate, had to be given more weightage, than the witnesses produced by the appellant. The above determination at the hands of the Co-operative Tribunal, H

p. 670

A besides being perverse was also totally unacceptable in law. In the facts and circumstances of the instant case, the statement of the notary should have been rejected and discarded, simply because the notary in his deposition had acknowledged, that he did not issue any notarial certificate in terms of Section 8 of the Notary Act. 8 In the absence of issuance of any such certificate, notarization of the document dated 13.11.1992 was clearly subject to suspicion. The conclusion drawn by the Co-operative Tribunal as also the High Court, to the effect that the document dated 13.11.1992 was executed at C Calcutta, was therefore, based on no evidence whatsoever. - The fact that the document dated . 13.11.1992 had not been executed in Calcutta, was also sought to be substantiated by showing, that the registration number of the Society was not depicted in the said letter, D even though the said letter was shown to have been executed at the residence of the Secretary of the Society. It was reasoned, that the Secretary of the Society would have supplied the aforesaid number, if the above document had been executed at his residence. Having E rejected the credibility of the statement of the notary and having not accepted the fact that the above document was executed at the residence of the Secretary of the Society, there is no reason for not accepting the statements of the three witnesses produced by the F appellant, to show that she (appellant) was at Bombay on 11.11.1992, as well as, on 13.11.1992. The Cooperative Tribunal and the High Court, erred on the face of the record, by not taking into consideration material f;>.cts. available on the file of the case. [Para 28 viii, viii] [723-H; G- 724-A-H; 725-A-E] 3.5. The Arbitrator had placed heavy reliance on the fact, that the respondent had deposited rent on 21.10.1993 (payable to the appellant), into the account of the appellant, by herself, filling up the bank deposit vouch.er. Accordingly, the Arbitrator inferred, that the

PRATIMA CHOWDHURY v. KALPANA MUKHERJEE & 671 ANR. property in question, even to the knowledge of the respondent, had not actually been transferred to her name by the appellant (at least upto 21.10.1993). That was the reason, why the respondent had continued to deposit rent for flat no. 50, into the account of the appellant upto 21.10.1993. Coupled with the said factual aspect, the B Arbitrator placed great reliance on the letter dated 28.10.1993 addressed by PM to CP Limited, wherein, he described the appellant as the "landlady". Undoubtedly, if the documents relied upon by the respondent were genuine, PM would not have acknowledged the C ownership of the appellant over flat no. 50 (on 28.10.1993). The detern:tination of the Arbitrator, on the subject of the transfer of the covered garage, to the name of the respondent was also overlooked by the Co- operative Tribunal, as well as, by the High Court. The appellant, had one covered garage space also. Whilst D reference was made about the details of the flat sought to be transferred, in the transfer documents, no reference was made to the CQVered garage space. Based on the letter dated 11.11.1992, and the document dated 13.11.1992, flat no. 50 was transferred to the name of the respondent. The instant transfer however did not include the covered garage space. Thereafter, based on an agreement executed between respondent (on the one hand), and the Society (on the other), the said covered garage space was transferred to the name of the respondent, on 25.4.1995. The said transfer was not at the behest of, or with the concurrence of the appellant. Therefore, according to the view expressed by the Arbitrator, the covered garage space, must be deemed to have never been transferred to the respondent by its erstwhile owner. The Arbitrator also expressed the view, that the agreement dated 25.4.1995 could not have been executed without the participation of the appellant. The instant aspect of the matter was also totally overlooked by the Co-operative Tribunal, as well as, by the High H

p. 672

A Court. The findings of the fact, recorded by the Co- operative Tribunal and by the High Court, are bound to be treated as perverse. [Para 28 ix, x] [725-G-H; 726-A, E- H; 727-A-B]

4. The Co-operative Tribunal as well as the High Court, 8 had invoked the principle of justice and equity, and the doctrine of fairness, while recording their eventual findings in favour of the respondent. It is not a matter of dispute, that for a long time appellant had been residing at Bombay. She was residing at Bombay in the house of C her sister. PM, son of the respondent was an engineering graduate; He also possessed the qualification of MBA. Originally PM was employed as Sales Manager/Regional Manager with CP Ltd. at Bombay. PM married SM (the daughter of appellant's sister), whilst he was posted at o Bombay in 1987. Soon after his marriage, PM and SM also started to live in the house of HPR (father-in-law of PM). HPR was wealthy person. The evidence available on the record of the case revealed that the appellant treated SM as her daughter, and PM as her son. In 1992, PM was transferred from Bombay to Calcutta. Immediately on his transfer, the appellant accommodated him in flat no. 50. Subsequently, CP Ltd. entered into a lease and licence agreement, in respect of flat no. 50 with the appellant, so as to provide residential accommodation to PM (as per the terms and conditions of his employment). Obviously, PM was instrumental in the execution of the above lease and licence agreement. In order to deposit monthly rent payable to the appellant (by CP Ltd.), PM opened a bank account in the name of the appellant, jointly with himself. He exclusively operated the above account, for deposits as well as for withdrawals. Not only that, the findings recorded by the Arbitrator indicate that the letter dated 11.11.1992 written by the appellant was drafted by PM. The said conclusion was drawn from the fact that the manuscript of the original was in the handwriting of PM. H All these facts demonstrated a relationship of absolute

PRATIMA CHOWDHURY v. KALPANA MUKHERJEE &673 ANR. trust and faith between the appellant and PM. The said relationship emerged, not only on account of the fact that PM was married to SM (the niece of the appellant), but also on account of the fact, that PM and his wife SM soon after their marriage lived in the house of HPR (husband of the sister of the appellant). They resided together with the appellant till 1992, i.e., for a period of more than a decade, before PM was transferred to Calcutta. The relationship between PM and the appellant would constitute a fiduciary relationship. Even though all these aspects of the relationship between the parties were taken into c consideration, none of the adjudicating authorities dealt w.ith the controversy, by taking into account the fiduciary relationship between the parties. When parties are in fiduciary relationship, the manner of examining the validity of a transaction, specifically when there is no reciprocal consideration, has to be based on parameters which are different from the ones applicable to an ordinary case. [Para 30] [727-E-H; 728-A-H; 729-A-B]

5. The relationship between PM and the appellant was a relationship of faith, trust and confidence. PM was in a domineering position. He was married to SM. SM was the daughter of HPR. The appellant has lived for a very long time in the house of HPR. During that period (after his marriage) PM also shared the residential accommodation in the same house with the appellant, for over a decade. In Indian society the relationship between PM and the appellant, is a very delicate and sensitive one. It is therefore, that the appellant extended all help and support to him, at all times. She gave him her flat when he was transferred to Calcutta. She also extended loans to him, when he wanted to set up an independent business at Bombay. These are illustrative instances of his authority, command and influence. Instances of his enjoying the trust and confidence of the appellant included amongst others, the joint account of the H

p. 674

A appellant with PM, which the latter operated exclusively, and the drafting of the letters on behalf of the appellant. In such fact situation, the onus of substantiating the validity and genuineness of the transfer of flat no. 50, by the appellant, through th·e letter dated 11.11.1992 and the B document dated 13.11.1992, rested squarely on the shoulders of the respondent. Because it was only the relationship between PM and the appellant, which came to be extended to the respondent. The document dated 13.11.1992 clearly expressed, that the said transfer was c without consideration. The respondent in her written reply before the Arbitrator asserted; that the above transfer was on a consideration of Rs.4,29,000/-. The Arbitrator in his order dated 5.2.1999 concluded, that the respondent could not establish the passing of the consideration to the appellant. The Cooperative Tribunal, 0 as well as, the High Court, despite the factual assertion of the respondent were of the view, that passing of cc:msideration was not essential in determination of the gehuineness of the transaction. The respondent miserably failed to discharge the burden of proof, which essentially rested on her. The appellant led evidence to show, that she was at Bombay on 11.11.1992 and 13.11.1992. Letter dated 11.11.1992 and the document dated 13.11.1992, shown to have been executed at Calcutta could not be readily accepted as genuine, for the said documents fell in the zone of suspicion, more so, b_ecause th.e manuscript of the letter dated 11.11.1992 was in the hand-writing of PM leading to the inference, that.PM was the author of the above letter. It is, therefore, not incorrect to infer, that there seems to be a ring of truth, in the assertion made by the appellant, that PM had obtained her signatures for executing the letter and document. The.re was no justification whatsoever for the appellant, to have transferred flat no. 50 to the respondent, free of cost, even though she had purchased the same for a consideration of Rs. 4 lakhs in the year ,

PRATI MA CHOWDHURY v. KALPANA MUKHERJEE & 675 ANR.

1987. Specially so, when she had no direct intimate relationship with the respondent. By the time the flat was transferred, more than a decade had passed by, during which period, the price of above flat, must have escalated manifold. The invocation of the principle of justice and equity, and the doctrine of fairness, would in fact result in returning a finding in favour of the appellant, and not the respondent. [Para 31) [733-D-H; 734-A-H; 735-A-C]

Subhas Chandra Das Mushib vs. Ganga Prosad Das Mushib AIR 1967 SC 878: 1967 SCR 331; ; Krishna Mohan Ku/ alias Nani Charan Ku/ vs. Pratima Maity (2004) 89 SCC C 468; Anil Rishi vs. Gurbaksh Singh, (2006) 5 SCC 558 ~ relied on. Case Law Reference: (1995) 1 sec 214 relied on Para 27 D

Footnotes

27 (2010) 12 sec 458 relied on Para 27 1967 SCR 331 relied on Para 30 · E (2004) 89 sec 468 relied on Para

30 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1938 of 2014.

From the Judgment and Order dated 14.02.2006 of the F High Court of Calcutta in CO. Nos. 3039 & 3040 of 2002.

A.T.M. Sampath, P.N. Ramalingam, T.S. Shanthi, Rahul Nagpal, Jitendra Mohan Sharma, Ajit Sharma, Nitin Singh, Sameer Singh, Sandeep Singh, Mithilesh Kumar Pandey, G Pahlad Sharma for the Appearing Parties.

Judgment

The Judgment of the Court was delivered by JAGDISH SINGH KHEHAR, J. 1. Orchestra Co- operative House Society Limited (hereinafter referred to as 'the H

p. 676

A Society') raised flats at 48/IE, Gariahat Road, Calcutta - 700019. lndirani Bhattarcharya became a member of the Society on 12.1.1987. She was issued share certificates bearing nos. 0047 and 0048. Based on the above membership she was allotted flat no. 5D for a consideration of Rs. 4 lakhs. B The above flat measuring 900 sq. ft. comprised of three bed rooms, two bath rooms, one drawing-cum-dinning room, a kitchen and verandah on the fourth floor. In addition to the above, she was allotted one covered garage space on the ground floor. The transfer of the flat no. 5D by the Society to C lndirani Bhattacharya was approved by the Deputy Registrar, Co-operative Societies.

22. On 27.3. 1991, lndirani Bhattacharya submitted her resignation from the Society in favour of Pratima Chowdhury (i.e., the petitioner herein). On 15.4.1991, lndirani Bhattacharya D executed an agreement for transfer of flat no. 50 to Pratima Chowdhury subject to the consent of the Society and the approval of the Deputy Registrar, Co-operative Societies, for a consideration of Rs. 4 lakhs. The Society having consented to the request of lndirani Bhattacharya sought the approval of the Deputy Registrar, Co•operative Societies through a letter dated 29.4.1991. In this behalf it would also be relevant to mention that Board of Directors of the Society had resolved in its meeting held on 16.2.1992, to accept the resignation of lndirani Bhattacharya, as also, the consequential transfer of the membership of the Society and the ownership of the flat to the name of Pratima Chowdhury. In the above resolution, the name of Pratima Chowdhury as a member of the Society was approved with effect from 9.1.1992. The Secretary of the Society informed Prafima Chowdhury on 17.2.1992, that her membership to the Society, as also, the transfer of flat no. 5D to her name, had been approved by the Deputy Registrar, Co- operative Societies.

33. The facts available on the records reveal° that Partha Mukherjee (son-in-law of the petitioner's sister, and son of the H

PRATI MA CHOWDHURY v. KALPANA MUKHERJEE &677 ANR. [JAGDISH SINGH KHEHAR, J.] respondent) occupied the petitioner's flat. Partha Mukherjee A was employed as Regional Sales Manager with Colgate Palmolive (India) Limited. On 9.3.1992, Colgate Palmolive (India) Limited, confirmed having taken flat no. 50 on lease and license, for a period of three years (with effect from 1.4.1992), for the residence of Partha Mukherjee. The pleadings also B reveal, that with effect from 1.4.1992, Colgate Palmolive (India) Limited, took the aforesaid flat on a monthly rent of Rs. 5,000/ -. The above said monthly rent, was deposited in the joint account of the petitioner Pratima Chowdhury and Partha Mukherjee. c

44. On 29.6.1992, the petitioner Pratima Chowdhury addressed a letter to the Secretary of the Society, requesting the Society to transfer flat no. 50 to the name of her nominee Kalpana Mukherjee. The letter dated 29.6.1992 of Pratima Chowdhury, made some express factual disclosures. Firstly, that she was not in good health. Secondly, that she was not in a position to move to Calcutta from Bombay in the near future. Thirdly, that Kalpana Mukherjee was already residing in the flat in question along with Partha Mukherjee. Fourthly, that above nominee Kalpana Mukherjee was her close relative. In addition to the request of transfer of flat no. 50 in favour of her nominee Kalpana Mukherjee, Pratima Chowdhury also informed the Society through her letter dated 29.6.1992, that all municipal taxes and service charges in connection with the above flat should be collected from Kalpana Mukherjee. F

55. Pratima Chowdhury then addressed another letter dated 11.11.1992, to the Secretary of the Society, reiterating her request made in the previous letter dated 29.6.1992 wherein she again expressed clearly that the transfer being sought by G her, was without any monetary consideration.

66. ·it was pointed out in letter dated 11.11.1992, that the formal request for the transfer was only being made, in order to comply with the rules regulating such transfer, and also, to avoid future complications. Consequent upon the aforesaid H

p. 678

A deliberations, Pratima Chowdhury executed an agreement dated 13.11.1992, transferring her right, title and interest in the flat no. SD. On the same day as the aforesaid agreement was executed, Kalpana Mukherjee moved an application (on 13.11.1992). B

77. The Board of Directors of the Society in their meeting held on 14.2.1993, resolved to accept the resignation of Pratima Chowdhury, and to accept the membership of Kalpana Mukherjee (in place of Pratima Chowdhury), and to seek the C approval of the Deputy Registrar, Co-operative Societies for the transfer of flat no. SD to the name of Kalpana Mukherjee, on the basis of letters of Pratima Chowdhury dated 11.11.1992 and 11.11.1992. Accordingly, the Secretary of the Society addressed a letter dated 10.3.1993 to the Deputy Registrar, Co-operative Societies, for the approval of the decision of the · D Board of Directors (of the Society, dated 14.2.1993).

88. On 23.4.1993, Pratima Chowdhury wrote a letter to the Senior Commercial Executive, of the Calcutta Electric Supply Corporation (South Region Office) requesting him to transfer E the electricity-supply meter of flat no. SD to tile name of Kalpana Mukherjee. The instant letter dated 23.4.1993, is also disputed by Pratima Chowdhury. She has even disputed her signature on the said letter. She also filed a first information report at the Gariahat Police Station, Kolkata, complaining that her signature F o the above letter was forged.

99. The Assistant Registrar, Co-operative Societies raised certain objections on the request of the Society for transfer of flat no. SD from the name of Pratima Chowdhury to the name of Kalpana Mukherjee. In this behalf the Assistant Registrar, G Co-operative Societies informed the Secretary of the Society, that the application of Kalpana Mukherjee for membership had not been submitted in the proper format. It was also pointed out, that the original affidavit had not been appended to the application. Lastly, it was brought out, that the Salary H Certificate, Income Tax Clearance Certificate and Professional

PRATIMA CHOWDHURY v. KALPANA MUKHERJEE & 679 ANR. [JAGDISH SINGH KHEHAR, J.] Tax Certificates had not been appended to the application of A Kalpana Mukherjee, for the transfer of the flat in her name. On 22.9.1993, the Secretary of the Society provided all the required documents sought by the Department of the Co- operative Societies. B

1010. Partha Mukherjee was transferred by his employer Colgate Palmolive (India) Limited, from Calcutta to Bombay. Consequently, Colgate Palmolive (India) Limited terminated the agreement executed by it with Pratima Chowdhury on 19.10.1993, with immediate effect. In the letter dated 19.10.1993, Colgate Palmolive (India) Limited required Partha C Mukherjee to. hand over vacant possession of flat no. SD to Pratima Chowdhury, after refund of security. On 21.10.1993, Kalpana Mukherjee, from her own account, deposited rent in the Bank account of Prati ma Chowdhury. On 28.10.1993, Partha Mukherjee addressed a letter to P.R. Keswani, D Company Secretary of Colgate Palmolive (India) Limited, along with a receipt bearing no. 9893, depicting refund of the security deposit (of Rs. 60,000/-). The aforesaid refund was sHown to have been made by Pratima Chowdhury. E

1111. On 16.12.1994, 500 shares of Tata Chemicals Limited, 50 shares of Siemens, 500 shares of Indian Aluminium and 100 shares of l.T.C. Hotels, standing in the joint names of Partha Mukherjee and Sova Mukherjee (wife of Partha Mukherjee) were transferred to the name of Pratima Chowdhury. According F to the petitioner Pratima Chowdhury, the above transfer of shares was in lieu of loans extended by her to Partha Mukherjee. However, according to Kalpana Mukherjee, the transfer of the above shares, constituted consideration paid on her behalf (by her son Partha Mukherjee) to Pratima Chowdhury in lieu of the G transfer of flat no. 50.

1212. Pratima Chowdhury wrote a letter dated 28.2.1995 to the Secretary of the Society, that she had not received any reply to her letter dated 11.11.1992. She also informed the Secretary of the Society, that she had decided to return to Calcutta H

p. 680

A permanently. Accordingly, she informed the Secretary of the Society, that her request for transfer of her membership to the name of Kalpana Mukherjee, be treated as withdrawn. It is the case of Pratima Chowdhury, that the Society never responded to her letter dated 28.2.1995. It is also her case, that her letter s dated 28.2.1995 was never forwarded by the Society, to the Department of Co-operative Societies.

1313. On 8.3.1995, the Society approached the Deputy Registrar, Co-op3rative Societies, seeking approval for the admission of Kalpana Mukherjee as a member of the Society C (in place of Pratima Chowdhury). On 13.3.1995, the Deputy Registrar, Co-operative Societies conditionally approved the membership of Kalpana Mukherjee. Accordingly, on 13.3.1995 itself the shares of Pratima Chowdhury were transferred to the name of Kalpana Mukherjee. On 22.3.1995, Pratima D Chowdhury addressed a letter to the Deputy Registrar, Co- operative Societies, with a copy to the Chairman of the Society. In the above letter, the Deputy Registrar, Co-operative Societies was requested to direct the Society to withdraw the offer of transfer of her membership to Kalpana Mukherjee. It E was also requested, that the application ml;lde by Kalpana Mukherjee for transfer of share certificates in her name, be not approved. The instant letter dated 22.3.1995, depicts the fact that Pratima Chowdhury was unaware of the deliberations of the Society, as also, the approval (of the deliberations of the F Society), by the Deputy Registrar, Co-operative Societies, on 13.3.1995. In pursuit of the same objective, Pratima Chowdhury wrote another letter dated 28.3.1995, to the Secretary of the Society. She enclosed therewith, the letter which she had addressed to the Deputy Registrar, Co-operative Societies G dated 22.3.1995. Therein, she again reiterated, that her request for transfer of membership in favour of Kalpana Mukherjee be treated as withdrawn. In order to consider the request made by Pratima Chowdhury in her letter dated 22.3.1995 (to the Deputy Registrar, Co-operative Societies) H and the letter dated 28.3.1995 (to the Secretary of the Society);

p. 681

& ANR. [JAGDISH SINGH KHEHAR, J.] the Society convened a meeting of the Board of Directors on A 2.4.1995. Rather than considering the issue on merits, the Board of Directors resolved, that it had no legal competence to restore the membership of the Society, as also, the retransfer of the ownership of the flat no. 5D, to Pratima Chowdhury. Having so resolved, the Secretary of the Society forwarded a B copy of the resolution dated 2.4.1995, to the petitioner on 10.4.1995.

1414. At this juncture, it would be relevant to mention, that the Board of Directors of the Society approved the transfer of C flat no. 5D (comprising of three bed rooms, two bath rooms, one drawing-cum-dinning room, one verandah and one kitchen on the fourth floor, located at no:48/IE, Gariahat Road, Calcutta - .700019 to the name of Kalpana Mukherjee. In addition to the aforesaid flat, the ownership of Pratima Chowdhury also comprised of a covered garage space, on the ground floor. The D same were not mentioned in the clearances dated 14.2.1993 (by the Board of Directors of the Society) and 13.3.1995 (by the Deputy Registrar, Co-operative Societies). Consequently based on the agreement dated 25.4.1995 between Kalpana Mukherjee and the Society, the said garage space was also E subsequently transferred to the name of Kalpana Mukherjee.

1515. On 16.4.1995 within two weeks, from the date decision taken by the Board of Directors (on 2.4.1995) and within one week from the date of communication thereof to the petitioner F (through letter dated 10.4.1995), Prati ma Chowdhury addressed a notice dated 16.4.1995, contesting the validity of the Board of Directors' Resolution dated 2.4.1995. The petitioner also assailed the approval of the said transfer dated 13.3.1995. The Deputy Registrar, Co-operative Societies G referring to the petitioner's letter dated 28.2.1995 (wherein Pratima Chowdhury had withdrawn her request for transfer of membership in favour of Kalpana Mukherjee), wrote a letter dated 31.5.1995 to the Secretary of the Society. In the letter dated 31.5.1995, the Deputy Registrar, Co-operative Societies H

p. 682

A also highlighted the fact that, the Society had not brought the letter dated 28.2.1995 to the notice of Deputy Registrar, Co- operative Societies, at the time of seeking approval of the Co- operative Department. The Secretary of the Society was accordingly directed, to take a decision on the matter, and to B forward the same to the Deputy Registrar, Co-operative Societies. Being alive of the letter dated 31.5.1995, which was addressed by the Deputy Registrar, Co-operative Societies to the Secretary of the Society, the petitioner through her letter dated 13.6.1995 informed the Secretary of the Society, that the c withdrawal letter dated 28.2.1995 addressed by her was received by the Secretary of the Society, and further that the same had been duly acknowledged on 6.3.1995. The petitioner highlighted the fact, that the approval of the .Deputy Registrar, Co-operative Societies should not have been sought (by the D Secretary of the Society), after the receipt of the petitioner's communication dated 28.2.1995.

1616. Since, the petitioner was not communicated any determination, by the concerned authorities. She addressed a notice on 9.9.1995, calling upon the Secretary of the Society, E to deliver the possession of the flat no. 5D, along with the share certificates, to her within seven days of the receipt of the said notice. On 21.11.1995, the Society denied all the allegations made by the petitioner against the Society (contained in the notice). On the cl.aim of retransfer of the shares and flat made by the petitioner, the Society responded by asserting, that the shares had been transferred to the name of i<alpana Mukherjee, and on the basis thereof flat no. 5D also had been transferred in her name, thereupon, the Society did not have any legal authority to restore/retransfer the same to the name of the petitioner. On 19.12.1995, the Deputy Registrar, Co- operative Societies also informed Pratima Chowdhury, that the transfer of her shares and flat in favour of Kalpana Mukherjee had been completed, and since the Society had resolved on 2.4.1995 that it had no legal competence to cancel the same, nothing could be done in the matter.

PRATIMA CHOWDHURY v. KALPANA MUKHERJEE & 683 ANR. [JAGDISH SINGH KHEHAR, J.]

1717. Dissatisfied with the determination of the Co-operative A Societies, as also, the denial of the consideration at the hands of the Deputy Registrar, Co-operative Societies, the petitioner filed Dispute Case No. 29/RCS of 1995-96. The aforesaid dispute case was adjudicated upon by D.K. Ghosh in his capacity as Arbitrator. B

17(i) During the course of the above determination, Kalpana Mukherjee (who was impleaded as respondent no. 1) filed a reply on 22.2.1996 which deserves a special mention. Firstly, according to the reply filed by Kalpana Mukherjee flat no. 5D was purchased by Partha Mukherjee in the name of Kalpana Mukherjee (mother of Partha Mukherjee). The above flat was purchased for a total consideration of Rs. 4,29,000/-. The said consideration was paid by way of transfer of shares, in the name of Partha Mukherjee to the name of Pratima Chowdhury. Highlighting the above factual position is important because the entire paper work pertaining to the transfer of flat no. 5D, from the name of Pratima Chowdhury to the name of Kalpana Mukherjee indicates, that the above transfer was without any monetary consideration, whereas stands adopted by Kalpana Mukherjee was that as a matter of fact the said transfer was on a consideration of Rs. 4,29,000/-. Secondly, according to Kalpana Mukherjee (respondent no. 1), Pratima Chowdhury's letter dated 28.2.1995 was afterthought. It is therefore, that Kalpana Mukherjee in her reply emphasized that the letter dated 28.2.1995, was only a scheme devised by F Pratima Chowdhury to wriggle out of the transaction.

17(ii) The Secretary of the Society filed separate written reply to the case filed by Pratima Chowdhury. In its reply the Society supported the transfer of shares, as also, the transfer G of flat no. 5D to the name of Kalpana Mukherjee. The Society clearly brought out in their reply, that Pratima Chowdhury through her letter dated 29.6.1992 had informed the Society, that Kalpana Mukherjee was in occupation of the flat, and as such, maintenance charges for the flat should be recovered from her. H

p. 684

A Furthermore, according to the Society, the transfer of the shares, as also, of flat no. 5D to the name of Kalpana Mukherjee was approved at the request of Pratima Chowdhury, made through her letter dated 11.11.1992. It was submitted, that the aforesaid request was considered by the Department of Co- B operative Societies, which approved the resignation of Pratima Chowdhury and the consequential transfer of membership vide Resolution of the Board of Directors of the Society dated 14.2.1993. The above resolution had been forwarded by the Secretary of the Society, to the Deputy Registrar, Co-operative c Societies (by letter dated 10.3.1993), for approval. It was pointed out that the Deputy Registrar, Co-operative Societies had approved the Resolution of Board of Directors of the Co- operative Societies on 13.3.1995. Additionally, it was pointed out, that after the approval of the change of membership to the name of Kalpana Mukherjee, the petitioner Pratima Chowdhury had required the Senior Commercial Executive of Calcutta Electric Supply Corporation, to transfer the electricity-supply meter of flat no. 5D to the name of Kalpana Mukherjee. According to the Society, the above facts clearly evidenced the unequivocal intention of Pratima Chowdhury to transfer her shares and flat no. 5D to the name of Kalpana M~kherjee, which was given due effect to by the Society after seeking the approval of the Deputy Registrar, Co-operative Societies. In view of the aforestated factual position, the Society denied the claim raised by Pratima Chowdhury in Dispute Case No. 29/ F RCS of 1995-96.

17(iii) It is also imperative to record herein, that Pratima Chowdhury had filed rejoinder, to the written statements filed on behalf of Kalpana Mukherjee and the Society before the G Arbitrator. It was pointed out in the rejoinder, that Partha Mukherjee was married to Sova Mukherjee. Sova Mukherjee was the daughter of H.P. Roy and Bani Roy (sister of the petitioner, Pratima Chowdhury). On account of the above relationship she had treated Sova Mukherjee as her daughter H and Partha Mukherjee as her son. Consequently on the transfer

p. 685

& ANR. [JAGDISH SINGH KHEHAR, J.] of Partha Mukherjee to Calcutta (from Bombay), she allowed A ·him to reside in flat no. 50. At the behest of Parth~ Mukherjee, his employer Colgate Palmolive (India) Limited entered into a lease agreement with Pratima Chowdhury on 9.3.1992. Under the lease agreement Pratima Chowdhury was entitled to rent at the rate of Rs. 5,000/- per month. The lease agreement was B executed for a period of three years, with overriding condition, that the tenure of lease would coincide with the tenure of Partha Mukherjee at Calcutta, while in the employment of Colgate Palmolive (India) Limited. It was also pointed out, that Partha Mukherjee had opened a joint account along with petitioner c Pratima Chowdhury, for the deposit of rent payable by Colgate Palmolive (India) Limited. It was also pointed out, that Partha Mukherjee singularly operated the aforesaid joint account. In his above capacity he encashed the rent deposited by Colgate Palmolive (India) Limited, without the knowledge and notice of 0 the petitioner Pratima Chowdhury. She also asserted in the rejoinder, that she could obtain the details of the agreement executed with Colgate Palmolive (India) Limited, as also, the deposits of rent in her joint account with Partha Mukherjee, only after she had issued a letter to Colgate Palmolive (India) Limited, that she would not make any claim from the employer of Partha Mukherjee, on the basis of information supplied. In her rejoinder Pratima Chowdhury also asserted, that Partha Mukherjee had forced her to sign the letter dated 11.11.1992,. without disclosing the contents thereof. The categoric stance adopted by Pratima Chowdhury in her rejoinder was, that she was not aware of the contents of letter dated 11.11.1992, and furthermore, Partha Mukherjee had obtain her signature on other blank papers as well, by falsely informing her that the papers would be used to explain his stay in flat no. 50. She also denied having executed the document dated 13.11.1992, G which was allegedly notarized at Calcutta. In fact she denied her presence at Calcutta on 13.11.1992. She further stated, that Partha Mukherjee did not remain in employment of Colgate Palmolive (India) Limited after his transfer to Bombay. It was also pointed out by her, that on his return to Bombay, Partha H

p. 686

A Mukherjee started his independent business in aluminium products. For the said business Pratima Chowdhury claims to have advanced a loan of Rs.2 lakhs to Partha Mukherjee. The loan stated to have been extended to Partha Mukherjee was by way of a cheque drawn in favour of Bharat Aluminium B Company, for the supply of raw material for the business of Partha Mukherjee. She further contended, that Partha Mukherjee also took loan of Rs. 1,S0,000/- from Bani Roy (sister of the petitioner, Pratima Chowdhury). It was pointed out, that the share certificates held by Partha Mukherjee jointly with c his wife Sova Mukherjee, were transferred to the petitioner Pratima Chowdhury and her sister Bani Roy during the year 1994, toward repayment of loans taken from them by Partha Mukherjee. The position accordingly adopted was, that the transfer of share certificates did not constitute consideration in D lieu of the transfer of flat no. SD to Kalpana Mukherjee. A categoric assertion was made by the petitioner Pratima Chowdhury in her rejoinder, that on 30.11.1992 Partha Mukherjee had no company shares either in his own name or in the name of his wife Sova Mukherjee (nor in the joint names of the husband and wife). Accordingly, the plea raised by E Kalpana Mukherjee in her reply (to the dispute case filed by the petitioner Pratima Chowdhury) was that the transfer transaction was for consideration, and that, the payment of consideration made by transfer of shares from the name of Partha Mukherjee to the name of Pratima Chowdhury, was false. Pratima F Chowdhury also denied, that she had addressed a letter dated 23.4.1993 to the Senior Commercial Executive of the Calcutta Electric Supply Corporation (South Region Office).. She disputed even her signatures on the above letter, and further asserted, that she had filed a first information report at the G Gariahat Police Station, Kolkata. On the basis of the factual position noticed hereinabove, the petitioner Pratima Chowdhury reiterated, that she had neither surrendered, nor resigned from the membership of the Society, nor had she sought the transfer of flat no. SD from her name to the name of Kalpana Mukherjee. H

PRATIMA CHOWDHURY v. KALPANA MUKHERJEE & 687 ANR. [JAGDISH SINGH KHEHAR, J.]

1818. Before the Arbitrator, the petitioner examined three A · witnesses. She examined herself as PW1, she examined Vani Ganapati as PW2 and H.P. Roy as PW3. H.P. Roy PW3 (is married to Bani Roy, the sister of the petitioner Pratima Chowdhury) is the father-in-law of Partha Mukherjee. Kalpana Mukherjee examined four witnesses in her defence. She B examined herself as DW1, Partha Mukherjee her son was examined as DW2, the Secretary of the Society was examined as DW3 and S.N. Chatterjee, Advocate, who had notarized the documents referred to above, was examined as DW4.

1919. In the process of adjudicating upon the matter, the C Arbitrator framed six issues of fact, and seven issues of law. The same are being extracted hereunder:

"QUESTIONS OF FACT INVOLVED D i) Whether the Plaintiff tendered resignation on 11.11.92 from the membership of the Society or not.

ii) Was the document executed on 13.11.92 a deed of transfer of flat or an agreement for transfer of flat. E iii) Whether consideration money was paid by the Defendant no. 1 to the plaintiff or not.

iv) Whether the payment of consideration money by way of transfer of shares of companies can be treated as valid payment of consideration money or not.

v} Whether the Defendant no. 2 accepted the admission of the membership of the Defendant no. 1 on 14.2.93 or

vi} Whether the flat in question was encumbered due to existence of lease and license agreement at the material point of time i.e. on 11.11.92 or on 13.11.92.

"QUESTIONS OF LAW INVOLVED

i) Whether the instant dispute is barred ljy law of limitation. H

p. 688

A ii) Whether sub-section 9 of section 85 of West Bengal Co- Operative Societies Act, 1983 was followed in case of transfer of flat in question of the plaintiff.

iii) Whether section 69 and 70 of the West Bengal Co- Operative Societies Act 1983 were followed in respect of B admission of membership of the Defendant no. 1.

iv) Whether Rules 135(3) (a) and 142(1) of West Bengal Co-Operative Societies Rules 1987 were obeyed or not.

c v) Whether Rule 127(1) of West Bengal Co-Operative Societies Rules 1987 was obeyed in case of nomination or not.

vi) Whether the disputed transfer of flat contradicted the relevant provisions of the Bye-laws of the Defendant D Society or not.

vii) The Doctrine of estoppel as per sections 115 & 116 of the Evidence Act 1872 whether attracted or not."

2020. It is necessary for us to briefly record the factual as also the legal conclusions drawn by the Arbitrator in his order dated 5.2.1999, while disposing of the disputes raised by Pratima Chowdhury. Accordingly we are summarizing the same hereunder:-

F (i) In respect of the letter dated 11.11.1992, the Arbitrator observed that the same was drafted by Partha Mukherjee. This inference came to be drawn from the manuscript of the original. The Arbitrator pointed out that the letter dated 11.11.1992, disclosed that the transaction was not based on passing of monetary consideration, whereas, Kalpana Mukherjee had expressly asserted in her defence, that the transaction was executed on an agreed consideration of Rs. 4,29,000/-. Kalpana Mukherjee had also affirmed, that the aforesaid consideration had passed from the transferee to the transferor by transfer of shares of Partha Mukherjee, to the name of

p. 689

& ANR. [JAGDISH SINGH KHEHAR, J.] Pratima Chowdhury. The Arbitrator relying on the contents of A the letter dated 11.11.1992, recorded that the letter itself mentioned that the details disclosed therein, were meant purely to comply with the rules and to avoid future complications. The Arbitrator felt, that if Pratima Chowdhury had the intention to sell the flat, she would have mentioned the same in her letter dated B 11.11.1992. It was also observed by the Arbitrator, that there was no justification for not mentioning the monetary consideration in the said letter. On the instant aspect of the matter the Arbitrator was of the view, that the disclosure of the above consideration would have clearly avoided future c complications (which seem to be the intention for writing the letter dated 11.11.1992). The Arbitrator also pointed out, that the letter dated 11.11.1992 could not be treated as a letter of resignation of the petitioner Pratima Chowdhury from the Society. In this behalf it was noticed, that the word "resignation" 0 was completely absent from the text of the letter dated 11.11.1992.

(ii) In respect of letter dated 13.11.1992 the Arbitrator pointed out, that the same was notarized by S. N. Chatterjee, Advocate, who was the son-in-law of the sister of Kalpana E Mukherjee (defendant No. 1, before the Arbitrator). Although, the above notary stated that the letter dated 13.11.1992 was signed by all the parties concerned before him at Calcutta, he acknowledged, that he did not issue any notarian certificate in terms of Section 8 of the Notary Act. According to the Arbitrator, F Pratima Chowdhury and all the witnesses appearing for her, had unequivocally and categorically affirmed, that she (Pratima Chowdhury) was in Bombay on 11.11.1992, as also, on 13.11.1992. Therefore, according to the Arbitrator, the question of her appearing before the notary at Calcutta on 13.11.1992, G did not arise at all. According to the Arbitrator, the registration number of the Society had not been mentioned in the document dated 13.11.1992, this according to the Arbitrator, made the document suspicious because Anil Kumar Sil, the Secretary of the Society, had mentioned that the above document dated H

p. 690

A 13.11.1992 was executed at his residence. If the above factual position was correct, according to the Arbitrator, the registration number would have been supplied by the Secretary of the Society, and would have been mentioned in the document itself. Furthermore, according to the Arbitrator, the document dated B 13.11.1992 was in the nature of deed of transfer, but such transfer would materialize after (and not before) the consent of the Board of Directors of the Society, and the approval of the Deputy Registrar, Co-operative Societies. As per the Arbitrator, even the first step towards transfer of flat no. 50 had not c commenced on 13.11.1992, and therefore, the question of allotment and handing over the possession of the flat to the nominee Kalpana Mukherjee, in accordance with the terms and conditions of the allotment and bye-laws of the Society did not arise either in law or in fact, as has been wrongly stated in the said document dated 13.11.1992. As per the Arbitrator even 0 the document dated 13.11.1992 was silent on the consideration for such transfer, despite Kalpana Mukherjee expressing that the above transfer was for a sale consideration of Rs. 4,29,000/ -. According to the Arbitrator, the possession of Kalpana E Mukherjee, was through Partha Mukherjee, because of the lease and license agreement between Pratima Chowdhury and Colgate Palmolive (India) Limited (which commenced on 1.4.1992 and was terminated on 19.10.1993), and not on the basis of the document dated 13.11.1992. The Arbitrator also pointed out, that Kalpana Mukherjee had deposited rent in the F account of Pratima Chowdhury on 21.10.1993, describing it as rent payable to Pratima Chowdhury. The Arbitrator further observed that Pratha Mukherjee in his letter dated 28.10.1993 mentioned Pratima Chowdhury as the landlady of flat no. 50. Based on the above two instances of 21.10.1993 and G 28.10.1993, the Arbitrator was of the view, that the assertion of transfer of flat no. 50 by Pratima Chowdhury to Kalpana Mukherjee stood clearly annihilated.

(iii) On the issue of the consideration money, the Arbitrator H noted, that Kalpana Mukherjee had stated in her defence, that

p. 691

& ANR. [JAGDISH SINGH KHEHAR, J.] the parties had orally settled the passing of consideration in lieu A of flat no. 5D, at Rs.4,29,000/-. It was also her contention, that the parties had settled that the above agreed consideration would be paid by Partha Mukherjee to Pratima Chowdhury by transferring his shares in different companies to the name of Pratima Chowdhury. But Pratima Chowdhury categorically 8 denied the passing of any consideration, as she had no intention to sell the property. She also asserted, that the shares shown to have been transferred from the name of Partha Mukherjee to the name of Pratima Chowdhury, were acquired by Partha Mukherjee long after November, 1992 {when the C letters dated 11.11.1992 and 13.11.1992 were issued) i.e. from August, 1993 to April, 1994. The details of the transfer of shares was disclosed in the award passed by the Arbitrator as under:-

"COMPANY'S NAME NO. OF SHARES ACQUIRED . D

T~ta Chemicals Ltd. 50 nos. 8.9.93

Tata Chemicals Ltd. 450 nos. 27.10.93

Siemens 50 nos. 2.8.93 E

Indian Aluminium 500 nos.· 4.3.94

l.T.C. Hotels 100 nos. acquired with Mr. H.P. Roy 4.4.94" F

The above shares were acquired by Partha Mukherjee jointly, either with his wife or with his father-in-law, long after the material point of time. Pratima Chowdhury's assertion before the Arbitrator, questioning truthfulness of the assertion of G Kalpana Mukherjee, was also based on the fact that, Kalpana Mukherjee {or Partha Mukherjee) could not have agreed to transfer to Pratima Chowdhury, what they did not themselves · hold when the transaction was allegedly executed. In order to falsify the contention of Kalpana Mukherjee {and Partha H

p. 692

A Mukherjee) that consideration was paid to Pratima Chowdhury by transfer of shares as noticed above, it was stated that after Partha Mukherjee was transferred from Calcutta to Bombay in the year 1993, he did not continue with his employment with Colgate Palmolive (India) Limited, as he wanted to start a B business of aluminium products with one R.K. Sen in Bombay. Keeping in view the above objective, Partha Mukherjee took a loan of Rs. 2 lakhs from Pratima Chowdhury. The above loan was extended by Pratima Chowdhury by way of cheques drawn in favour of Bharat Aluminium Company Limited for supply of raw materials for Partha Mukherjee's business. It was further contended that Partha Mukherjee similarly took a loan of Rs. 2 lakhs from his own wife Sova Mukherjee which was repaid by Partha Mukherjee through cheques (bearing nos. 021865, 021866 and 021867) drawn on the Bank of Baroda. It was further pointed that Partha Mukherjee had similarly taken a loan for a sum of Rs.1.5 lakhs for the same purpose from Bani Roy (his mother-in-law) which he had still not repaid. It was pointed out, that at the asking of H.P. Roy (his own father-in-law, father of Sova Mukherjee) Partha Mukherjee had transferred share certificates standing in his name, ana in the name of his wife E Sova Mukherjee, to the name of Pratima Chowdhury, towards repayment of the abovementioned loans. Accordingly, the case of Pratima Chowdhury was, that transfer of shares by Partha Mukherjee to the name of Pratima Chowdhury, was for a completely different transaction, and had nothing to do with the allowing of the usage and occupation of the flat, by Kalpana Mukherjee and Partha Mukherjee.

(iv) On the lease and license agreement the Arbitrator noticed, that Partha Mukherjee (son of Kalpana Mukherjee), and son-in-law of Pratima Chowdhury's sister Bani Roy, was allowed to reside in flat no. 5D, consequent upon his transfer from Bombay to Calcutta (while in the employment of Colgate Palmolive (India) Limited). It was also noticed, that the lease and license agreement, was executed by Colgate Palmolive H (India) Limited, at the instance of Partha Mukherjee, for a

PRATI MA CHOWDHURY v. KALPANA MUKHERJEE & 693 ANR. [JAGDISH SINGH KHEHAR, J.] monetary consideration of Rs. 5,000/- per month, as rent payable to Pratima Chowdhury. To deposit the above consideration Partha Mukherjee opened a joint account in the names of Pratima Chowdhury and himself. The Arbitrator noted, that when Partha Mukherjee drafted the letter dated 11.11.1992, he utterly neglected to mention the subsisting lease and license agreement between Colgate Palmolive (India) Limited and Pratima Chowdhury. The Arbitrator also noticed, that Kalpana Mukherjee did not inform Colgate Palmolive (India) Limited that flat no. SD had been transferred from the name of Pratima Chowdhury to her name. On the contrary the Arbitrator pointed c out, that Kalpana Mukherjee on 21.10.1993, deposited rent in the account of Pratima Chowdhury, by filing the bank deposit slips. Furthermore, the Arbitrator noticed, that Partha Mukherjee in h~ letter dated 28.10.1993 mentioned, that Pratima Chowdhury as the landlady of flat no. SD. According to the D Arbitrator, the above factual position clearly indicates, that Kalpana Mukherjee along with her son Partha Mukherjee were aware, that flat no. SD belonged to the petitioner, even on 21/ 28.10.1993. Whereas, they wrongly depicted the transfer thereof from the name of Pratima Chowdhury to the name of Kalpana Mukherjee through letter dated 11.11.1992 and E 13.11.1992. Since the lease and license agreement between Colgate Palmolive (India) Limited and Pratima Chowdhury continued from 1.4.1992 to 19.10.1993, there was no question of handing over of possession thereof by Pratima Chowdhury to Kalpana Mukherjee. F

(v) On the submissions advanced on behalf of Pratima Chowdhury in respect of one covered garage space on the premises of the Society is concerned, the Arbitrator concluded from the documents submitted by Kalpana Mukherjee, that G Pratima Chowdhury had one covered garage space also. The said covered garage space was not mentioned in the document dated 13.11.1992. Thereafter, based on an agreement executed between Kalpana Mukherjee on the one hand and the Society on the other, the said garage space was also H

p. 694

. . A transferred to the. name of Kalpana Mukherjee on 25.4.1995. According to the Arbitrator, the instant agreement dated 25.4.1995, had no validity as the same was neither mentioned in the letter dated 11 .11 .1992, nor in the document dated 13.11.1992. And therefore cannot.be considered as having the B approval of Pratima Chowdhury. Accordingly, the Arbitrator expressed the view that the covered garage space must be deemed to have never been transferred by Pratima Chowdhury to Kalpana Mukherjee. The Arbitrator also concluded, that the agreement dated. 25.4.1995 cou.ld not have been executed in c the absence of Pratima Chowdhury. Based on the a1:>ove · factual position Pratima Chowdhury had also alleged connivance between Kalpana Mukherjee and the SoCiE!ty, so as to deprive Pratima Chowdhury.of her property.

(vi) Besides the above factual conclusions drawn by the D Arbitrator, the Arbitrator had also concluded that the Society violated various provisions of the West Bengal Co-operative ·Societies Act, 1983, and the rules framed thereunder, as also the bye-laws of the Society. The Arbitrator summarized the conclusions drawn on the legal issues as under:- E "Keeping in view of the all above, I am of the opinion that the transfer of the flat no. 5D of the Defendant No. 2 Society was not done in accordance with laws including West Bengal Co-Operative Socities Act, Rules,'lndian Contract F Act, Transfer of Property Act due to re~n at a glance.

1) Section 85(9), Section 70, S~ction 69 of West Bengal Co-Operative Socities Act 1983 have been flouted.

G 2) Rule 127(1 ), Rule 135(3)(a), Rule 142(1) have been flouted.

3) Bye-laws have been contradicted.

4) No consideration· money was paid by the H Defendant no. 1 to the Plaintiff.

PRATI MA CHOWDHURY v. KALPANA MUKHERJEE & 695 ANR. [JAGDISH SINGH KHEHAR, J.] 5) Societies accepted the resignation of the Plaintiff A on 14.2.93 which she had not tendered, if that be so, the society did not act as per Rule 143 also.

6) The flat in dispute was under the lease and license agreement at the material time since bank account 8 in this respect was operated by the son of the Defendant no. 1 who also deposited cheque on Plaintiffs behalf.

7) The instant dispute case is·not barred by limitation. c 8) The transaction of 13.11.92 does not attract the doctrine of estoppel."

21 . Based on the abovementioned conclusions drawn by the Arbitrator on the factual and legal issues canvassed by the rival parties. The Arbitrator passed the following award:

"AWARD

Keeping in view of the above, based on documents, assessing all the pros and cons, on the basis of equity, justice and good conscience, I pass the following 'AWARD':

a) The agreement dt. 13.11.92 between the Plaintiff and Defendant no. 1 is invalid, void and incomplete and F

b} The relevant resolution dt. 14.2.93 (Agenda no. 1) of the Managing Committee of the Defendant no. 2 is quashed and;

c} The Defendant no. 2 is directed to ensure and G conform that the plaintiff gets the possession of flat no. 5D with garage space with immediate effect and issue share certificate in her name immediately and

d} Any other action if any taken by any authority on and H

p. 696

A after 13.11.92 affecting the membership of the Plaintiff in any manner whatever is also quashed.

The above Judgment and Award have been given on Pronouncement before the parties present."

2222. Dissatisfied with the award rendered by the Tribunal on 5.2.1999, Kalpana Mukherjee preferred an appeal bearing no. 14 of 1999 before the West Bengal Co-operative Tribunal (hereinafter referred to as the Co-operative Tribunal). The Society (defendant no. 2, before the Arbitrator) preferred a C separate appeal bearing no. 29 of 1999, to assail the award of the Arbitrator dated 5.2.1999. While dwelling upon the controversy between the parties, the Co-operative Tribunal considered it appropriate to highlight the social relationship and affinity between the parties. According to the Cooperative o Tribunal, the relationship between the parties had an essential bearing, to an effective detennination of the controversy. Insofar as the instant aspect of the matter is concerned, rather than re- narrating the position taken into consideration, we consider it more appropriate to extract hereunder the narration recorded E by the Co-operative Tribunal itself. The same is accordingly reproduced hereunder:-

"For proper appreciate of evidence it is proper to introduce the parties. P.W. Chowdhury, the respondent no. 1 in both the appeals is a spinster and now aged 50+. She F is a graduate. She studies in Calcutta and other places. She is an exponent to Bharat Natyam and performs dance at many places of India. For a pretty long time she has been residing at Bombay. Smt. Bani Roy is her sister. B. Roy's husband Mr. H.P. Roy is a wealthy person in G Bombay. P. Chowdhury has been living in the family of Mr. H:P. Roy since the put up herself in Bombay. Partha Mukherjee is the son-in-law of H.P. Roy. K. Mukherjee who is the appellant in appeal no. 14/1999 is the mother of Partha Mukherjee. K. Mukherjee retired from service in the H National Library, Calcutta in 1994. While in service, she

PRATIMA CHOWDHURY v. KALPANA MUKHERJEE & 697 ANR. [JAGDISH SINGH KHEHAR, J.] would stay. in the Govt. accommodation at Balvediare A Road, Alipur. Partha Mukherjee, Son of K. Mukherjee is an Engineer from 1.1.T., Kharag'pur and obtained M.B.A. from Ahmedabad and at the material time worked as Sales Manager/Regional Manager of Colgate Palmolive Ltd. in Bombay, Calcutta and other places. Partha Mukheree B married Sova Mukherjee, who was the daughter of H.P. Roy of Bombay. P. Chowdhury, her sister Bani, H.P. Roy, Partha and Sova, all lived together for a prolonged period of time in the house of H.P. Roy at Bombay. Partha married Sova sometimes in 1987 and little after marriage, c he and Sova started living in the house of H.P. Roy. Evidence has it to say that the relationship of Pratima with Sova Rinki is, as Pratima herself says, "like my daughter''. Similarly, the evidence of Pratima runs that after marriage, her relationship with Partha was "like my son". In 1992, 0 Partha worked for Palmolive Co. Ltd. in Bombay and while working there he, as we have earlier observed, would stay in the house of H.P. Roy. In January, 1992, Pratima was allotted a flat being no. 58 at 48E, Gariahat Road, Calcutta- 19 belonging to the society. The said flat was originally E allotted to Smt. lndrani Bhattacharya and the said Smt. lndrani Bhattacharya having transferred the flat to Smt. P. Chowdhury, the latter came to be an allottee of that flat, but P. Chowdhury did not reside there at all. In March/April, 1992, Partha was transferred from Bombay to Calcutta and needed an accommodation. Colgate Palmolive Co. Ltd., F was required to arrange accommodation for its officers. As Pratima and Partha became very closer and Pratima treated Partha like her son, Partha put up himself in the flat of Pratima in April, 1992 and it was the Colgate Palmolive Co. Ltd., which by virtue of an agreement for G license with Pratima used to pay Rs.5000/- per month as rent to Pratima. These are all facts admitted. We see that the relationship amongst Pratima, Partha and Kalpana grew very closer because of Partha marrying the daughter of the sister of Pratima. This background has to be borne H

p. 698

A in mind while appreciating the evidence on record."

Having traced the relationship between the parties, as has been recorded hereinabove, the Co-operative Tribunal was of the view, that the entire approach of the Arbitrator was erroneous, as the Arbitrator had treated Pratima Chowdhury as a 8 pardanashin lady. The above inference, drawn by the Co- operative Tribunal, is also being extracted hereunder:-

"The entire approach of the Ld. Arbitrator seemed to have gone into the fashion as if the respondent no. 1 P. C Chowdhury was a pardanasin lady, that she was unaware of the documents she was executing that it was Partha who managed to get all the documents executed by Pratima so as to obtain transfer of the flat in the name of his mother Kalpana Mukherjee. Let it be recorded here at the outset D that P. Chowdhury, having regard to her status, education and wealth cannot be allowed to take the benefit of what a pardanasin woman is entitled to on two-fold grounds; firstly, she is highly education (illegible) and a literate woman and secondly, the pleading of Pratima Chowdhury E as we get from plaint does not make out such a case. "

Just in the manner in which we have recorded the conclusions drawn by the Co-operative Arbitrator, highlighting each individual aspect taken into consideration, we will also endeavour to similarly summarize the conclusions drawn by the F Co-operative Tribunal on different aspects of the matter. The above conclusions are being recorded hereunder:-

(i) The Co-operative Tribunal was of the view, that the determination rendered by the Arbitrator was erroneous on account of the fact that the Arbitrator did not take into consideration a letter of vital importance to the controversy. In this behalf, the Co-operative Tribunal examined the letter dated 29.6.1992, which Pratima Chowdhury had written to the Society, wherein she had indicated that due to her indifferent health, she was not in a position to visit Calcutta in the immediate future.

PRATIMA CHOWDHURY v. KALPANA MUKHERJEE & 699 ANR. [JAGDISH SINGH KHEHAR, J.] She accordingly requested 'the Society to transfer her flat to "my nominee Kalpana Mukherjee, a close relative of mine". In the above letter Pratima Chowdhury had also stated, that Kalpana Mukherjee was already occupying the flat, and was staying in it with her son (Partha Mukheree), and her daughter-in-law (Sova Mukherjee). She accordingly requested the Society, that for the maintenance of the flat, charges payable should be recovered from the residents of the flat. It would be relevant to mention, that Pratima Chowdhury had accepted having written the above letter (in the rejoinder filed by her before the Arbitrator). Despite the above Pratima Chowdhury had c explained, that the letter dated 29.6.1992 had been signed by her at the instance of Partha Mukherjee. According to the Co- operative Tribunal, the above letter dated 29.6.1992 written by Pratima Chowdhury on her letterhead from Bombay, demolished the entire case set up by her. Primarily on the basis 0 of the said letter dated 29.6.1992 the Co-operative Tribunal concluded, that the factual inferences recorded by the Arbitrator without reference to the above letter, were not justified. It came to be expressly concluded by the Co-operative Tribunal, that motives attributed to Partha Mukherjee were clearly unjustified. E (ii) According to the Co-operative Tribunal, after having written the above letter dated 29.6.1992, Pratima Chowdhury wrote two other letters dated 11.11.1992 and 13.11.1992. On the basis of the above letters, flat no. 5D was transferred by the Society, to the name of Kalpana Mukherjee, consequent upon the approval of the Deputy Registrar, Co-operative Societies. In the opinion of the Co-operative Tribunal, Pratima Chowdhury did not assail the action of the Society in transferring flat no. 5D to Kalpana Mukherjee till February, 1995. According to the Co-operative Tribunal, the challenge to the transfer of the above flat in the name of Kalpana Mukherjee, was raised only after a marital discord had developed between Partha Mukherjee and his wife Sova Mukherjee. On account of the above discord, Partha Mukhrjee left the company of the family of his father-in-law (H.P. Roy). It was only thereupon, that H

p. 700

A Pratima Chowdhury assailed the transfer of the flat (from her name, to the name of Kalpana Mukherjee). According to the Co-operative Tribunal, the Arbitrator overlooked the above extremely relevant factual position and accordingly erred in drawing his conclusions. B (iii) Insofar as the document dated 13.11.1992 is concerned, the Co-operative Tribunal having examined it, recorded that the same was executed by Pratima Chowdhury and Kalpana Mukherjee (both as executants), which was attested by H.P. Roy (father-in-law of Partha Mukherjee) and C which was also sworn before a notary. The Co-operative Tribunal also observed, that the aforesaid document had been executed on a non-judicial stamp paper of Rs.40/-. The above document in its text recorded, that Pratima Chowdhury had transferred the possession, right, title and interest of flat no. 50 0 in favour of Kalpana Mukherjee (the nominee/transferee). The reason for the aforesaid transfer was indicated in document dated 29.6.1992. It was mentioned, that on account of her (Pratima Chowdhury's) indifferent health and on account of having decided to permanently settle in Bombay, she had E agreed to transfer the flat no. 50 in favour of Kalpana Mukherjee. It was also duly recorded in the above document, that possession of flat no. 50 had already been handed over to Kalpana Mukhrjee. It was also pointed out, that Kalpana Mukherjee had already applied for membership of the Society, F whereafter, she would be entitled to all rights and privileges over flat no. 50 in terms of the bye-laws of the Society. According to the Co-operative Tribunal, Pratima Chowdhury did not deny execution of document dated 13.11.1992. As per the Co-operative Tribunal, the submission of Pratima G Chowdhury about having signed a blank paper, on which Partha Mukherjee had executed the document dated 13.11.1992, was not acceptable. The Co-operative Tribunal was of the view, that Pratima Chowdhury having admitted her signatures on the document dated 13.11.1992, it was not open to her to deny the execution thereof. For the same reason, the

PRATIMA CHOWDHURY v. KALPANA MUKHERJEE & 701 ANR. [JAGDISH SINGH KHEHAR, J.] Co-operative Tribunal rejected the contention advanced on behalf of Pratima Chowdhury, that she had never appeared before the notary at Calcutta because she had never gone to Calcutta during the period when the documents dated 11.11.1992 and 13.11.1992 were executed. The Co-operative Tribunal felt compelled to record the aforesaid conclusion in the following words: "Regardless of whether the document called agreement dated 13.11.1992 is legal or not, the fact remains that the document was executed by the transferor and the transferee, and it could not be denied that long before the agreement was executed, possession of the flat was delivered c way back in March, 1992.". Therefore, all the findings recorded by the Arbitrator in respect of the document dated 13.11.1992 were not accepted for the above reasons.

(iv) While dealing with the documents dated 29.6.1992, 11.11.1992 and 13.11.1992, the Co-operative Tribunal D expressed disbelief at the determination of the Arbitrator to the effect, that Pratima Chowdhury had no intention to transfer her membership and her flat bearing no. 50 to Kalpana Mukherjee. According to the Co-operative Tribunal, the question whether monetary consideration passed from Kalpana Mukherjee to E Pratima Chowdhury or not, was a different issue, however, the letters dated 29.6.1992, 11.11.1992 and 13.11.1992 clearly expressed the intention of Pratima Chowdhury to transfer flat no. 50 in favour of her nominee Kalpana Mukheaee. The Co- operative Tribunal was also of the view, that the Arbitrator was· F unjustified in observing, that the above letters were drafted by Partha Mukherjee, or that, Partha Mukheree prevailed over Kalpana Mukherjee to execute the above letters. According to the Co-operative Tribunal, neither the evidence available on the records of the case, nor the circumstances of the case justified G any such inference.

(v) While dealing with the issue of consideration, which had passed from Kalpana Mukherjee to Pratima Chowdhury on account of transfer of flat no. 50, the Co-operative Tribunal H

p. 702

A expressed, that the Arbitrator appeared to have been of the view that since in the letter dated 11.11.1992 it was stated, that no monetary transaction was involved, there could be no sale, and consequently, when there was no sale, there could be no transfer. The Co-operative Tribunal expressed the view, that B sale was not the only mode of transfer. Relying on the letter dated 11.11.1992 the Co-operative Tribunal felt, that it could not be conclusively held, that Pratima Chowdhury had no intention to transfer flat no. 50 in the name of Kalpana Mukherjee. In fact, according to the Co-operative Tribunal, the c issue of passing of consideration and the issue of transfer of the property were two independent issues. The said issues, according to the Tribunal, had to be determined as per the totality of the circumstances of the case. On the instant aspect of the matter the Co-operative Tribunal expressed the view, that D the rival parties were tied up by a matrimonial relationship, inasmuch as, the niece (Sova Mukherjee) of Pratima Chowdhury was the cementing factor, of their relationship. Accordingly, whether or not consideration had passed between the parties, could not be considered as a decisive factor. In fact, . E the Co-operative Tribunal was pleased to further conclude, "Even assuming for the sake of argument that no monetary transaction was involved, the factum of transfer is not abrogated thereby". According to the Co-operative Tribunal, the provisions of the West Bengal Co-operative Societies Act, and the Rules framed thereunder, do not mandate, that transfer could only be made by way of sale. Keeping in view the closeness of the relationship, which is existed between the parties, according to the Co-operative Tribunal, the issue of paramount importance was not the receipt of monetary consideration, the issue of paramount importance was only "... to accommodate the plaintiffs niece Sova and her husband Partha, that was uppermost in the mind of the plaintiff ... " Referring to the facts of the present case, the Co-operative Tribunal held, that consistent with the case of Pratima Chowdhury based on an oral agreement, Partha Mukherjee transferred shares of different companies " ... worth Rs.4,29,000/- in favour of the

p. 703

& ANR. [JAGDISH SINGH KHEHAR, J.] plaintiff on 6.12.1994 by way of consideration of the apartment. .. ". It is necessary to notice the observations made by the Co-operative Tribunal on the instant aspect of the matter. The same are accordingly reproduced in the words of the Co- operative Tribunal: "One may not believe the reality of oral agreement so as to determine the price and of payment thereto by transfer of shares of different companies in favour of the respondent no. 1. But if it appears from the documents which show that in the latter part of the year 1994, shares worth Rs.4,29,000/- were transferred in favour of P. Chowdhury and if no convincing evidence is forthcoming as to payment of that c money for different purpose or for different reason then one is to believe the passing of consideration price, and the passing of consideration price when proved would virtually prove the alleged oral agreement to that effect."

(vi) The Co-operative Tribunal· also examined the rival contentions of the parties in respect of the place where the documents in question were executed. It was pointed out, that the evidence produced by Pratima Chowdhury to the effect, that she had signed the documents in Bombay, could not be accepted. Likewise, according to the Co-operative Tribunal,_ the witnesses produced by Pratima ChoWdhury on the above issue, were not reliable. According to the Co-operative Tribunal, when the notary who was an Advocate stated on oath, that the documents were executed in Calcutta before him, it was not possible to give credence to the statement of Pratima F Chowdhury or the witnesses produced by her. According to the Co-operative Tribunal, it needed to be kept in mind even, insofar as the instant aspect of the matter was concerned, that Pratima Chowdhary had raised a dispute in respect of the transfer of flat no. 50 only after a marital discord had developed · G between Partha Mukherjee and Sova Mukherjee.

(vii) According to the Co-operative Tribunal "the question as to why Kalpana Mukherjee was not made a nominee in January, 1992 when she was put in possession of the flat, lies H

p. 704

A in the fact that since 1987, Kalpana Mukherjee's son Partha Mukherjee had been residing in Bombay with his father in law H.P. Roy and Pratima Chowdhury. According to the Co- operative Tribunal, the Arbitrator recorded a useless reasoning, that the nomination in favour of Kalpana Mukherjee was not B acceptable. Referring to Sections 79 and 80 of the West Bengal Co-Operative Societies Act, the Co-operative Tribunal expressed the view, that it was not compulsory that transfer of nomination could only be in favour of a member of the family of the person making the nomination. According to the Co- e operative Tribunal, the letters/documents dated 29.6.1992, 11 .11.1992 and 13.11 .1992 were sufficient proof of the nomination by Pratima Chowdhury in favour of Kalpana Mukherjee. It was also pointed out, that the Society had accepted the above nomination, which was approved by the D Deputy Registrar, Co-Operative Societies. It was accordingly concluded by the Co-operative Tribunal, that in such a situation, no separate letter giving consent to the transfer was required.

(viii) Another interesting aspect of the matter dealt with by the Co-operative Tribunal was based on the principle of estoppel. Rather than expressing the observations and conclusions drawn by the Co-operative Tribunal in our words, we consider it just and appropriate to narrate the findings recorded by the Co-operative Tribunal by extracting its observations. The same are accordingly reproduced hereunder:-

"Section 115 of the Evidence Act provides that "when one person has by his declaration act or commission, intentionally causes or permits another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed in the suit or proceeding between herself and such person or his representative shall be allowed in the suit or proceeding between herself and such person or his representation, to deny the truth of that thing". The following facts are very H

PRATIMA CHOWDHURY v. KALPANA MUKHERJEE & 705 ANR. [JAGDISH SINGH KHEHAR, J.] much present to invoke the doctrine. A

(a) Fraud, undue influence (illegible) and misrepresentation has not been proved;

(b) (illegible) B (c) (Illegible)

(d) Partha was in need of accommodation in Calcutta;

(e) Long before transfer Kalpana was already made a nominee in respect of the flat in question; C

(f) Unquestionably two letters dated 19.6.1992 and 13.11.1992 are there addressed by Pratima to the society clearly asking for transfer of the flat in favour of Kalpana; D

(g) Possession was delivered pursuant to those letters nd agreement dated 13.11.1992;

(h) Lease and license agreement with Colgate Palmolive Ltd., legally cannot destroy the factum of E transfer;

(i) Partha and Kalpana are led to believe about the completion of transfer; F Under the law it (illegible) required to be executed and registered under the T.P. Act and the l.R. Act;

(k) Pratima writes to CESC to henceforth collect all charges from Kalpana; G (I) Pratima slept a slumber after the signing of the agreement dated 13.11.1992 till April, 1993.

These facts are to our mind sufficient to invoke the . doctrine of estoppel. When society acted upon letters. of the plaintiff/respondent no. 1 and transfer was effected, th,e H

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